Jeffrey Mickens v. State

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-19-00195-CR
JEFFREY MICKENS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 123rd District Court
Panola County, Texas
Trial Court No. 2018-C-081
Before Morriss, C.J., Burgess and Stevens, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
As Eleanor drove Jeffery Mickens to his residence in rural Panola County in early 2018,
riding along were Eleanor’s daughter, Regina,1 and Regina’s infant daughter, Barbara. Shortly
after arriving at Mickens’s residence, Eleanor was shot and killed by Mickens. In the same
episode, Mickens abducted and shot Regina, abducted Barbara, and later shot at Panola County
Sheriff’s Deputy Christopher Welk.2 Faced with five indictments from these events, Mickens
waived a jury and, in a single proceeding, pled guilty to this and the four other indictments. In a
single brief, he appeals all five convictions. In this case, we address Mickens’s appeal of his
conviction for aggravated kidnapping of Regina. See TEX. PENAL CODE ANN. § 20.04.
1
We refer to the victim of this instant aggravated kidnapping as Regina. Because one of Mickens’s victims was a
child, we have used pseudonyms for her and her family to protect the anonymity of the child-victim.
2
At the sentencing hearing, the State presented testimony and evidence about Mickens’s crime spree over the night
of February 21–22, 2018. Regina testified that she and her infant daughter were on their way to the home of
Regina’s mother, Eleanor. Eleanor had met and befriended Mickens at the local Tyson plant, where they both
worked. The day of the events, Eleanor let Mickens do his laundry at her residence. Mickens asked Eleanor to take
him to his residence. Around that time, Regina and her daughter arrived at Eleanor’s residence, and Eleanor asked
Regina to ride with her and Mickens to his residence.
After the four arrived at Mickens’s home, he went inside for a few minutes, then returned to Eleanor’s
driver side window. Regina heard her mother say, “Please don’t do this, please don’t do this.” Regina heard
gunshots as Mickens shot and killed Eleanor.
Mickens then forced Regina out of the car and dragged her inside his small trailer house. He washed his
hands, reloaded his pistol, and told Regina he was going to kill her and her infant daughter because Regina would
testify against him. In the house, Regina grabbed at and struggled with Mickens over his pistol. She was able to
escape the house and run toward a neighbor’s house. As she ran, she heard gunshots. The neighbor let her in.
Regina, who at that point did not know she had been shot three times by Mickens, begged the neighbor for help for
her daughter, still in Eleanor’s car. The neighbor’s boyfriend returned home shortly and retrieved the infant, who
was unharmed. Eleanor was dead by the time law enforcement arrived.
Several hours after these events, law enforcement personnel were processing and investigating the scene
and searching for Mickens. A citizen arrived who said he lived in one of the nearby small trailers. The man told
officers that his door was locked but that he never locked the door. Officers agreed to help him pry open the front
door. Discovered in the trailer, Mickens shot at the officers through the door. A standoff of several hours ensued,
but the Longview SWAT team was called and eventually shot “CS” or tear gas into the trailer to obtain Mickens’s
surrender.
2
We affirm the judgment in this case,3 because (1) Mickens was competent to waive, and
intelligently and knowingly waived, his right to counsel, after being sufficiently admonished; (2)
Mickens knowingly and intelligently waived his right to a jury trial; and (3) Mickens knowingly
and voluntarily pled guilty.
(1) Mickens Was Competent and Intelligently and Knowingly Waived His Right to Counsel,
After Being Sufficiently Admonished
Mickens complains that the trial court did not sufficiently admonish him as to the
potential hazards and dangers of representing himself at trial, as required by Faretta v.
California, 422 U.S. 806 (1975). However, a review of the complete record shows that Mickens
self-represented only at the June 6 pretrial hearing where he pled guilty to the five indictments.
At the June 6 hearing, his standby counsel was with him, and Mickens consulted with that
counsel at least once. When the three-day punishment phase of the trial took place, Mickens was
represented by that appointed attorney.
A criminal defendant has a “constitutional right to conduct his [or her] own defense.”
Faretta, 422 U.S. at 836. Although an accused claiming this right does not need to possess “the
skill and experience of a lawyer in order competently and intelligently to choose self[-
]representation, he should be made aware of the dangers and disadvantages of self-
representation, so that the record will establish that ‘he knows what he is doing and his choice is
3
On even date herewith, by separate opinions, we also affirm Mickens’s other four convictions in the following
cases: 06-19-00196-CR, aggravated kidnapping of Regina’s infant daughter, Barbara; 06-19-00197-CR, murder of
Eleanor, Regina’s mother; 06-19-00198-CR, attempted capital murder of Deputy Christopher Welk; 06-19-00199-
CR, aggravated assault with a deadly weapon of Regina.
3
made with eyes open.’” Id. at 835 (quoting Adams v. United States ex rel. McCann, 317 U.S.
269, 279 (1942)).
A court reviewing a defendant’s election of self-representation is not required to engage
in any “formulaic questioning to establish a knowing and intelligent waiver” nor follow some
“script for courtroom recitation by trial judges faced with this dilemma.” Blankenship v. State,
673 S.W.2d 578, 583 (Tex. Crim. App. 1984). That said, neither does Faretta “authorize trial
judges across this state to sit idly by doling out enough legal rope for defendants to participate in
impending courtroom suicide; rather, judges must take an active role in assessing the defendant’s
waiver of counsel.” Id. A trial court should inquire into a defendant’s “age, educational
background, legal experience, knowledge of the rules of evidence and trial procedure;”4 but the
defendant’s “technical legal knowledge, as such, [i]s not relevant to an assessment of his
knowing exercise of the right to defend himself.” Faretta, 422 U.S. at 836.
Knowing the procedural history helps in understanding Mickens’s complaints.
a. Pretrial
On May 30, 2019, the trial court held a pretrial hearing at which Mickens expressed
dissatisfaction with his court-appointed counsel, Hagan.5 Mickens told the trial court that Hagan
had not “done anything” for Mickens, had never asked him what happened on the night of the
4
Renfro v. State, 586 S.W.2d 496, 500 (Tex. Crim. App. 1979).
5
Hagan was reached via telephone; apparently Mickens had expressed his desire to speak to the court.
4
offenses, had not addressed Mickens’s request to see a psychologist, and had not shown him
discovery materials until Mickens asked.6
The trial court told Mickens that it would not release Hagan from his appointment to
represent him. Instead, the court “highly encouraged” Mickens to let Hagan continue
representing him and scheduled to reconvene the following week, at which time the court would
admonish Mickens about self-representation.
b. Reconvened Pretrial
On June 6, the pretrial was reconvened. Hagan told the trial court that he had met with
Mickens in the week since the May 30 hearing. Hagan stated,
[Mickens] indicated . . . that he wants me to continue to represent him. However,
he is not wanting to participate in the proceedings. So exactly what he means by
that, I’m not sure. So I’m assuming he wants me to represent him; he’s just not
cooperating with me or wanting to assist in his defense.[7]
However, despite this apparent resolution of the issue, the discussion became somewhat
disjointed. The court asked Mickens if he wanted to represent himself at trial, adding, “I believe
we’re moving forward with the murder case only.” Though the State confirmed this, appointed
counsel Hagan objected, saying that he and Mickens were prepared to try all cases. Then,
Mickens asked, “Is this here today if I want a jury trial, or trial by judge today, too?”
6
The trial court asked Hagan if he opposed Mickens being evaluated by a psychologist; Hagan declined to answer
that question in the presence of the State and told the court he had previously spoken on this subject with Mickens.
As regards discovery, Mickens told the court Hagan had visited him, told Mickens that Hagan “had the police report
and all this stuff and the video,” and asked Mickens if he wanted to see it. Mickens said that he told Hagan that he
did want to see the materials. Mickens said, “So I guess if I never asked for the police report, I never would have
got it.”
7
Hagan added, “I guess, for the record, he tells me he believes he’s being railroaded by the State and by his attorney,
so.”
5
At this point, the court explained Mickens’s right to waive a jury trial and the bifurcation
of criminal trials in Texas. Then the court asked whether Mickens wanted to have Hagan
represent him in the trial of the five offenses. Mickens answered, “I will be representing
myself.” The trial court then told Mickens that Hagan would remain on the case as a standby
counsel and that Mickens would “be held to the same level of skill and knowledge as a licensed
attorney in the State of Texas,” including “knowledge of the Texas Rules of Evidence [and] the
Code of Criminal Procedure.”
The issue of self-representation having been formally raised by Mickens, the trial court
then began to question him, presumably to ascertain if his waiver of counsel was freely and
voluntarily made.8 The court established that Mickens was forty-nine years old, that he finished
high school and never attended college, that his last job was with Tyson, that he had no legal
experience, and that he had never represented himself in a court of law. When the court asked
Mickens to explain why he wanted to represent himself, Mickens complained that he was “not
getting any relief for nothing” from Hagan. The dialogue continued:
THE COURT: Okay. And you’re not doing this for sympathy or
in hope of a lighter punishment, should you be found guilty?
THE DEFENDANT: No, because I’m pleading “guilty” from the
gate. So we’re going to save the State a lot of time and a lot of money
because when this first starts, I’m saying “guilty” to every charge that you
give me.
8
Where a defendant chooses to represent himself at trial, the record should “affirmatively show . . . he was
voluntarily exercising his informed free will.” Faretta, 422 U.S. at 835.
6
This was the first time Mickens expressed an intent to plead guilty. The trial court then began
questioning Mickens about pleading guilty9 to the charges. The court asked if Mickens wanted
to speak with Hagan. Though Mickens answered that he did not, the reporter’s record states,
“(Counsel and defendant confer privately at counsel table.)” Immediately after conferring with
Hagan, Mickens told the court that he “would like to waive the jury and have [the court]
sentence” him.
This record establishes that Mickens was competent to waive his right to counsel and that
he made this waiver intelligently and knowingly, after being made aware of the dangers and
disadvantages of such. We believe, on this record, that he knew what he was doing and that his
choice was “made with eyes open.” See Adams, 317 U.S. at 279. Mickens self-represented for
less than one hour in a pretrial matter in which he pled guilty to five indictments and at which he
was attended by stand-by counsel. After that, Mickens was represented by counsel at a three-day
punishment trial. We overrule this point of error.
(2) Mickens Knowingly and Intelligently Waived His Right to Jury Trial
Mickens also complains that the record does not demonstrate knowing and intelligent
waivers of his right to a jury trial in each case. After a review of the record, we disagree.
“[A]s a matter of federal constitutional law, the State must establish through the trial
record an express, knowing, and intelligent waiver of jury trial by a defendant. A waiver of jury
is not to be presumed from a silent record, at least on direct appeal.” Guillett v. State, 677
S.W.2d 46, 49 (Tex. Crim. App. 1984).
9
We will describe the trial court’s admonishments regarding Mickens’s pleas of guilty when we address that point of
error.
7
Mickens claims that the trial court accepted his waiver of a jury trial without “engag[ing]
in any colloquy regarding [Mickens]’s right to have a jury decide the issue of guilt or innocence
and consider possible defenses to the charges and circumstances surrounding the case” and that
the court also failed to warn Mickens “that waiving a jury trial could still allow the trial court to
determine his guilt, or that [Mickens] could plead guilty and still have a jury determine his
punishment.” Mickens argues that, while he did execute a written jury waiver in each case and
told the court he approved of each of those waivers, his “approval of the written waiver[s] did
not illustrate that he waived his right to a jury trial knowingly and intelligently because it still
contained no admonishments about the jury trial right.”
Mickens made no indication that he wanted to waive his right to a jury until the trial court
was questioning him about his wish to represent himself. The court asked, “And you’re not
[seeking to represent yourself] for sympathy or in hope of a lighter punishment, should you be
found guilty?” Mickens answered that he intended to plead guilty to all charges.10 The court
asked if the State was opposed to this change in defense tactics. It was not. Appointed attorney
Hagan then interjected:
HAGAN: Can I --
THE COURT: -- to talk to your counsel?
HAGAN: Can I just ask him -- just very briefly talk to him just --
THE COURT: Yes. Privately?
10
A defendant pleading guilty waives his right to a jury trial on the issue of guilt/innocence. See Boykin v. Alabama,
395 U.S. 238, 243 (1969); McCarthy v. United States, 394 U.S. 459, 466 (1969); Gardner v. State, 164 S.W.3d 393,
399 (Tex. Crim. App. 2005). Because of the unique way Mickens’s case and discussions with the trial court
evolved, we address the merits of his jury-waiver claim.
8
MICKENS: I don’t want to talk to him.
(Counsel and defendant confer privately at counsel table[.])
MICKENS: I would like to waive the jury and have you sentence me.
This was the first time that waiver of a jury trial was mentioned. It is a reasonable inference that
Mickens made this decision based on advice from his attorney.
When the trial court asked the State if it opposed Mickens’s choice to waive a jury for
guilt/innocence, the State affirmed that it did not oppose it and clarified that it was Mickens’s
choice to decide if a jury or the trial court would decide his punishment, were he found guilty.
The court then said it would have each indictment printed for Mickens’s review and then asked if
Mickens’s decision was made “freely and voluntarily.” Mickens answered, “Yes.”
Certainly, the trial court’s question could have pertained to Mickens’s decision to plead
guilty or to his decision to waive a jury. However, “whether or not there is an intelligent,
competent, self-protecting waiver of jury trial by an accused must depend on the unique
circumstances of each case.” Adams, 317 U.S. at 278. The day Mickens waived his right to jury
trials and pled guilty to each indictment, the proceedings began with discussions over whether he
would represent himself at trial. This led to Mickens’s sua sponte declaration of his intent to
plead guilty in all five cases, which, in turn, led, after a brief consultation with attorney Hagan, to
his waiver of a jury trial. A week earlier, the court had explained to Mickens his options to
“proclaim [his] innocence” at trial, to plead guilty and ask the court to sentence him, or to work
out a plea bargain with the State. The court also told Mickens “the last case that was tried here,
9
the jury acquitted the defendant of a first-degree felony. So, you know, actually, juries do acquit
people.”
Also, Mickens signed, in each case, a formal waiver of jury consistent with Article 1.13
of the Texas Code of Criminal Procedure, stating that, “after being duly sworn,” he “freely and
voluntarily waive[d] [his] right to a trial by jury in each aforementioned cause and enter[ed] a
plea of guilty.” Reviewing the entirety of the record, we find Mickens made knowing and
voluntary waivers of his jury trial rights.
We overrule this point of error.
(3) Mickens Knowingly and Voluntarily Pled Guilty
Mickens also complains that he did not enter his pleas of guilty knowingly or voluntarily.
“No plea of guilty or nolo contendere shall be accepted by the court unless it appears that the
defendant is mentally competent and the plea is free and voluntary.” TEX. CODE CRIM. PROC.
ANN. art. 26.13(b) (Supp.).11
In determining whether a guilty plea was entered knowingly and voluntarily, we consider
the totality of the circumstances viewed in light of the entire record. Griffin v. State, 703 S.W.2d
193, 196 (Tex. Crim. App. 1986); Fluellen v. State, 443 S.W.3d 365, 368 (Tex. App.—
Texarkana 2014, no pet.). “[T]he record must affirmatively disclose that the defendant . . .
entered his plea understandingly and voluntarily.” Brady v. United States, 397 U.S. 742, 747 n.4
(1970); see Boykin v. Alabama, 395 U.S. 238, 243–44 (1969); see also Davison v. State, 405
S.W.3d 682, 687 (Tex. Crim. App. 2013). The trial court must admonish the defendant in
The trial court admonished Mickens after the State read each indictment. We examine Mickens’s plea and the
11
court’s admonishments separately, in each case, in the respective opinions.
10
substantial compliance with the requisites of Article 26.13 of the Texas Code of Criminal
Procedure. See TEX. CODE CRIM. PROC. ANN. art. 26.13 (Supp.).
Mickens argues that the trial court failed to discuss with him “that by pleading guilty,
[Mickens] would be waiving his right to further discovery, the appearance, confrontation, and
cross-examination of witnesses, and the privilege against self-incrimination;” and his right to
jury trials and counsel. However, our review of the record shows that those topics were covered
over the course of the two pretrial hearings.
Mickens’s right to representation by counsel was discussed throughout both hearings, as
described above. During the second pretrial hearing, when Mickens made his impromptu
declaration to plead guilty to all cases, he spoke briefly off the record with attorney Hagan, then
told the court he wanted to waive a jury trial and have the court sentence him. Shortly thereafter,
once the court confirmed Mickens’s wish to plead guilty and waive a jury, Mickens said to the
court, “That’s what I was trying to ask you while ago.” We take this to refer to a question from
Mickens to the court, five pages earlier in the reporter’s record: “Is this here today if I want a
jury trial, or trial by judge today, too?” This suggests that Mickens was familiar with his right to
a jury trial and his ability to waive that right. Discussing with Mickens his request to represent
himself, the court stated, “[W]e’ve provided you with all the discovery. Did you get everything
you requested last week?” Mickens answered in the affirmative.
We point out those instances to establish the context in which Mickens pled guilty.
Further, these matters are not specifically required by Article 26.13 of the Texas Code of
11
Criminal Procedure. The only requirement, complained of by Mickens, is that the record shows
he made his pleas of guilt freely and voluntarily.12
Mickens also complains that, in two cases, his pleas to attempted capital murder and
aggravated assault of Regina (cause numbers 06-19-00198-CR and 06-19-00199-CR,
respectively), the trial court did not formally and specifically advise him of the range of
punishment. We will address those complaints in our opinions on those cases.13
In the instant case, the trial court told Mickens the allegation of aggravated kidnapping
was “a first-degree felony offense” “punishable from five to 99 years or life in prison.” Mickens
testified that he understood. Before describing the range of punishment, the court established
that Mickens had never been found mentally incompetent to stand trial by any court or medical
professional, was a United States citizen, and could read and write the English language.
We find Mickens’s plea of guilty to aggravated kidnapping of Regina was made freely
and voluntarily. We overrule this point of error.
12
The various requirements of Article 26.13 are not constitutionally required. See Aguirre-Mata v. State, 125
S.W.3d 473, 475–76 (Tex. Crim. App. 2003) (discussing McCarthy v. State, 394 U.S. 459, 464 (1969)). Discussing
Boykin’s holding that the record must show “the defendant voluntarily and understandingly entered his pleas of
guilty,” the Aguirre-Mata court pointed out that the United States Supreme Court in Boykin required a trial court “to
make sure [the defendant] has a full understanding of what the plea connotes and of its consequences.” Aguirre-
Mata, 125 S.W.3d at 475 (quoting Boykin, 395 U.S. at 244).
13
Incidentally, in cause number 06-19-00199-CR, aggravated assault, the trial court did explain the specific range of
punishment. The court failed to enunciate the range of punishment when accepting Mickens’s pleas to cause
numbers 06-19-00197-CR, murder, and 06-19-00198-CR, attempted capital murder.
12
We affirm the trial court’s judgment in this case.14
Josh R. Morriss, III
Chief Justice
Date Submitted: August 26, 2020
Date Decided: October 9, 2020
Do Not Publish
14
Mickens also claims that his conviction in cause number 06-19-00199-CR for aggravated assault of Regina is
precluded, based on double jeopardy, by the conviction in this case for aggravated kidnapping of Regina. As that
claim attacks only the conviction in cause number 06-19-00199-CR, we address that complaint in our opinion in that
case. Additionally, Mickens assails duplicate court costs. As that issue attacks court costs in the companion cases,
only, we address those complaints in our opinions in cause numbers 06-19-00196-CR, 06-19-00197-CR, 06-19-
00198-CR, and 06-19-00199-CR.
13